New Cert Petition: Seattle's "First In Time" Tenant Rule Is A Taking And Due Processey

Here's the cert petition we've been eagerly awaiting in a case we've been following about Seattle's rewriting of the traditional lessor-lessee relationship.

The petition arose out of facial takings and due process challenges to Seattle's "first in time" rule for residential leasing. The city adopted an ordinance requiring owners to rent to the first tenant who applies that meets the owner's screening criteria.

The Washington Supreme Court tossed aside a long line of its own cases which held that the Washington Constitution's takings clause is not interpreted by the same analysis the U.S. Supreme Court employs for the Fifth Amendment. Not so the Washington court held, we might in the future decide that the Washington Takings Clause provides greater protection, but for the time being we conclude that federal takings doctrine is so clear that we simply adopt it wholesale. (The court based this conclusion on Tahoe-Sierra. Really! Of all cases on which to base a conclusion that the U.S. Supreme Court has clarified takings doctrine, Tahoe-Sierra ain't it.)

In a companion case, the court also concluded that the test under the Washington Constitution for substantive due process of law is "rational basis" (the federal test) and not (as previously held) under a slightly heightened standard.

So now we have the owners asking the U.S. Supreme Court to review these Questions Presented:

Based on its interpretation of federal law, the Washington Supreme Court overruled 68 regulatory takings and due process cases—130 years of jurisprudence—that had (1) held that the government lacks authority to destroy a fundamental attribute of property without just compensation; and (2) prohibited laws that are unduly oppressive of individual rights. The court took this drastic action to uphold a uniquely intrusive and novel City of Seattle ordinance that declared it unlawful for a residential landlord to choose among qualified tenant applicants. Instead, the law grants the first qualified person to apply for a vacancy an exclusive right of first refusal. This “first-in-time” rule is vastly broader than civil rights laws, which are not challenged here, because it prohibits any discretion whatsoever, even for entirely legitimate reasons.

The questions presented are:

1. Whether the destruction of a fundamental attribute of property ownership suffices to establish a taking without the need to prove diminished value or interference with reasonable investment-backed expectations, as recognized by cases like Hodel v. Irving, 481 U.S. 704, 716–17 (1987), and Kaiser Aetna v. United States, 444 U.S. 164, 179–80 (1979); and

2. Whether the Due Process Clause of the Fourteenth Amendment protects against an unduly oppressive legislative act that destroys a fundamental attribute of property ownership as established by Goldblatt v. Town of Hempstead, N.Y., 369 U.S. 590, 594 (1962), and Lawton v. Steele, 152 U.S. 133, 137 (1894).

We recommend you read it. Most interesting. We shall be following along, of course. 

Petition for Writ of Certiorari, Yim v. City of Seattle, No. ___ (Mar. 17, 2020)